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State v Singh [2010] FJHC 472; HAC020.2005 (23 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 20 OF 2005

STATE

V

BRIJAN SINGH aka BRIAN SINGH
s/o Ram Singh

Counsels: Mr. Aca Rayawa, Acting Director of Public Prosecution
Mr. Johh Rabuku of Leweniqila & Associates for the Accused

Hearing: 6th to 21st September 2010

Date of Summing Up: 22nd September 2010

Date of Judgment: 23rd September 2010

JUDGMENT

1. This trial held for last 12 days. After deliberation for about an hour, two assessors returned their opinion of not guilty to the charge mentioned below but one assessor is of the opinion that the Accused is guilty for the offence as he charged.
   

"First Count

Statement of Offence

FALSE PRETENCE: Contrary to Section 308 and 309 (a) of the Penal Code Cap 17.

Particulars of Offence

BRIJAN SINGH aka BRIAN SINGH s/o Ram Singh between the 24th day of May, 2002 and the 2nd day of August 2002, at Suva in the Central Division, with intent to defraud, caused the Government of the Republic of the Fiji Islands to pay the sum of $8,739.00 by falsely pretending that the said sum was for the payment of a business class ticket when in fact the money was used to purchase the cheaper economy class ticket and he pocketed the difference for his own benefit

Second Count

Statement of Offence

FALSE PRETENCE: Contrary to Section 308 and 309 (a) of the Penal Code Cap 17.

Particulars of Offence

BRIJAN SINGH aka BRIAN SINGH s/o Ram Singh between the 17th day of February 2003 and the 7th day of April 2003, at Suva in the Central Division, with intent to defraud, caused the Government of the Republic of the Fiji Islands to pay the sum of $4,311.00 by falsely pretending that the said sum was for the payment of an upgrade to business class ticket from Hunts Travel Service when in fact the money was later paid out to him by Hunts Travel Service after cutting its commission.

Third Count

Statement of Offence

FALSE PRETENCE: Contrary to Section 308 and 309 (a) of the Penal Code Cap 17.

Particulars of Offence

BRIJAN SINGH aka BRIAN SINGH s/o Ram Singh between the 22nd day of May 2003 and the 17th day of July 2003, at Suva in the Central Division, with intent to defraud, caused the Government of the Republic of the Fiji Islands to pay the sum of $9,724.00 by falsely pretending that the said sum was for the payment of a business class ticket when in fact the money was used to purchase the cheaper economy class ticket and he pocketed the difference for his own benefit".

2. I adjourned overnight to consider my judgment. I direct myself in accordance with the law contained in my summing up to the assessors.
   
3. I bear in mind that whilst the opinion of the assessors carries great weight, the verdict of the court is that of the judge and it is his duty to reach his own conclusion on the evidence (Joseph v The King [1948] AC 215. In Ram Dulare & others v R [1955] 5 FLR 1 the Court of Appeal referred to Joseph's case and said:
   

"...[the assessors] duty is to offer opinions which might help the trial judge. The responsibility for arriving at a decision and of giving judgment in a trial by the [High] Court sitting with assessors is that of the trial Judge and the trial Judge alone and ... he is not bound to follow the opinion of the assessors."

4. More recently, in Sakiusa Rokonabete v The State Criminal Appeal No. AAU0048/05, the Court of Appeal observed:
   

"In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts."

5. If the presiding trial judge disagrees with the opinion of the assessors, he must give written reasons for differing from the opinion and those reasons must be pronounced in open court (s. 237(4) of the Criminal Procedure Decree and predecessor s. 299(2) of the Criminal Procedure Code). The reasons for differing with the opinion of the assessors must be founded on the weight of the evidence and must reflect the presiding judge's views as to the credibility of witnesses (Ram Bali v Regina [1960] 7 FLR 80 at 83 (Fiji CA), Ram Bali v The Queen (Privy Council Appeal No. 18 of 1961), Shiu Prasad v Reginam [1972] 18 FLR 70, at 73 (Fiji CA. In Setevano v State [1991] FJA 3 at 5, the Court of Appeal stressed that the reasons of the presiding trial judge:
   

"must be cogent and they should be clearly stated. In our view they must also be capable of withstanding critical examination in the light of the whole of the evidence presented in the trial".

6. Let me discuss the facts of the case briefly. The accused Brijan Singh aka Brian Singh was the Permanent Secretary to the Ministry of Labour. He was nominated to participate on behalf of the Government in the ILO Conference on all three occasions.
   
7. On the 1st and 3rd occasions he went to Geneva and the 2nd occasion he went to Jarkata. Following factors are agreed between parties by facts and agreement which are not in dispute now:
   
   1. Accused is entitled for Business Class
      
   2. These three are official trips
      
   3. Proper procedure followed to purchase tickets
      
   4. Government paid for Business class ticket
      
   5. Accused travelled in Economy class
      
   6. Balance money after deduction paid to Accused by Hunts travels services
      
   7. There was an audit query
      
   8. Accused repaid the money what he received
      
   9. Government overpaid $15146 and received 12880.30 back from the accused Brijan Singh
      
   10. There is a loss of $2265.70 to the Government in these transaction
       
8. Question to be decided by the Court were briefly as follows:
   
   • (a) Was the accused obtained money on false pretence?
     
   • (b) Can the accused encash his entitlement?
     
9. On the occasion set out in the 1st and 3rd Count, the preparations were done by his office staff and he obtained the ticket on the date of travel.
   
10. How do we find whether the accused obtained money with the intention to defraud? In my view we should consider the entire transaction then considering a portion of the transaction. Here the accused had approved his Business class ticket fare. The money was paid to the travel agent for business class. The accused very well knows the purpose and amount of money was paid. The Government of Fiji had paid an excessive amount for the services delivered to her Permanent Secretary.
    
11. The Prosecution submits that the money had been obtained on false pretence but the defence submits at is encashment of an entitlement.
    
12. Let me consider the 2nd Count. In this Count the accused had travelled to Jakarta to take part in ILO conference. As per P39 the PSC had approved the travel of the accused with a condition. It states "The approval granted is on the condition that the ILO will meet all costs"
    
13. The Accused had been given clear approval to travel without burdening the government. But the accused being the Chief Accounting Officer in the Ministry of Labour had authorized to spend $4311 to upgrade his ticket to Business class. One might argue and say it is a financial irregularity but not an offence under the Penal Code. But if we consider the entire transaction. He authorized the amount for himself when the instruction from the PSC is to the contrary and paid it to a travel agent of his choice. After paying it he got it paid back to him. This is nothing but obtaining money by false pretence.
    
14. The Prosecution proved that the money which was obtained by the accused was deposited into his personal account and the same was not informed to the Government.
    
15. This matter was found in the audit of the Auditor General. A query was raised, in the defence Counsel term "the government kicks a fuss". It should be noted that at the exit interview of the Auditor General the accused denied travelling in Economy Class and maintained that he travelled in Business class. Two prosecution witnesses confirms that, but the accused denied doing so. Further both witnesses were not subjected to cross examination by the defence Counsel on that point. Subsequently the accused returned the money. If he is entitled to the said money he could have informed to the Government authorities of his position. His subsequent conduct raises doubt of his conduct which is admissible under Res gestae.
    
16. Now I consider the defence version the accused claims that he is entitled to travel in Business class. Therefore he can encash his entitlement. There is no express provision in the PSC circular for this encashment. I refer to a similar provision in Fiji Overseas Regulation (FOSR) Section D (3) states as follows:
    

"PASSAGE ENTITLEMENTS

D.3 An officer travel to or from an overseas post appointment or transfer, or on return to Fiji at the end o his tour or duty overseas will be entitled to passages at public expense at the following class of fare for himself ands his dependents who are to reside with him or are residing with him during his overseas service and who accompany him:

(a) Head of Mission : business class

(b) Others : economy class

All other travel for Head of Mission and other staff be economy class. Provided that no officer or dependent shall be permitted to exchange Entitlement for business travel for any other benefit or to claim official payments for business class travel if he has not travelled business class".

17. I further refer to a decision made in the Fiji Court of Appeal. In Fiji Public Service Appeal Board and Mahendra Singh s/o Daulal Singh Civil Appeal No. 53 of 1982 Henry J.A. states as follows: "No Public Servant or any other person has any right or entitlement other than that which has been expressly delegated". (Emphasis added)
    
18. Considering above authorities I find the accused is not empowered to encash his entitlement.
    
19. Considering the evidence before the Court which I extensively discussed in my summing up to assessors, I am convinced that there is ample evidence against the accused person to prove that he had committed offences as he charged.
    
20. For the reason given, I do not accept the opinion of not guilty by the majority of the assessors but with the minority.
    
21. The learned DPP has satisfied me the guilt of the accused beyond reasonable doubt. Accordingly, I convict the accused for the 1st Count, 2nd Count and 3rd Count as charged.
    

S. Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for the State
Leweniqila & Associates for the Respondent